Citation Nr: 0010913
Decision Date: 04/25/00 Archive Date: 05/04/00
DOCKET NO. 98-13 891A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to a disability rating in excess of 10 percent
for residuals of a right wrist fracture.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Kitlas, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1943 to May
1946, and from December 1948 to August 1952.
Service connection was granted for residuals of a right wrist
fracture by a May 1946 rating decision. A noncompensable
(zero percent) disability rating was assigned, effective May
11, 1946.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a January 1998 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Phoenix, Arizona, which granted a 10 percent disability
rating, effective July 29, 1997.
REMAND
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
In general, a veteran's claim of increasing severity of a
service-connected disability establishes a well-grounded
claim for an increased evaluation. Proscelle v. Derwinski, 2
Vet. App. 629 (1992). Therefore, the Board finds that the
veteran's claim for an increased evaluation for his residuals
of a right wrist fracture is well-grounded. Because the
claim is well grounded, VA has a duty to assist the veteran
in developing facts pertinent to the claim. 38 U.S.C.A.
§ 5107(a). Here, for the reasons stated below, the Board
finds that additional development is necessary in order for
VA to fulfill this mandatory duty to assist.
The veteran's current claim for an increased rating was
received by the RO in July 1997. VA medical treatment
records were subsequently obtained that covered a period from
August to December 1997. These records show that the veteran
sought treatment for complaints of right wrist pain and
decreased range of motion beginning in August 1997. In
October 1997, the veteran was diagnosed with right radial
sensory neuropathy, probably secondary to old injury.
The veteran underwent a VA joints examination in December
1997. Among other things, it was noted at this examination
that the veteran reported that he had had multiple recent X-
rays, and that a physician had informed him that there was
nerve damage as well. Additionally, it was noted that the
veteran had apparently had a recent EMG done of the "left"
hand which showed ulnar neuropathy. However, this
examination made no specific findings regarding the veteran's
account of nerve damage to the right wrist.
In a January 1998 rating decision, the RO increased the
disability rating for the veteran's residuals of a right
wrist fracture to 10 percent, effective July 29, 1997. The
RO stated that this rating was assigned for painful or
limited motion of a major joint, and that a higher evaluation
of 20 percent was not warranted unless there was ankylosis.
The veteran appealed the January 1998 rating decision
contending that he was entitled to a higher rating than 10
percent. In support of his appeal, the veteran submitted a
March 1998 private medical statement from a Dr. Thull, who
noted, in part, that the veteran had an EMG showing radial
sensory neuropathy of the "right" arm.
Based on the foregoing, the Board finds that the medical
evidence on file shows that the veteran has nerve damage as a
result of his right wrist fracture. Thus, it appears that
the service-connected disability may also be evaluated
pursuant to neurologic impairment. However, a review of the
record shows that the disability was never evaluated pursuant
to the neurologic impairment of the right wrist. More impor-
tantly, no neurologic examination was ever conducted on the
veteran's right wrist for disability evaluation purposes.
Further, the Board is of the opinion that it is not entirely
clear from the medical records which nerve has been damaged
as a result of the right wrist fracture. Therefore, the
Board concludes that a remand is necessary in order for a
neurologic examination to be conducted.
As an additional matter, the Board notes that both the
December 1997 VA examination and Dr. Thull's March 1998
examination were conducted over two years ago. Thus, the
Board is of the opinion that the evidence on file may not
accurately reflect the current severity of the veteran's
service-connected right wrist disorder. See Caffrey v.
Brown, 6 Vet. App. 377, 381 (1995) (VA required to afford a
contemporaneous medical examination where examination report
was approximately two years old); see also Green v.
Derwinski, 1 Vet. App. 121, 124 (1991).
For the reasons stated above, this case is REMANDED for the
following:
1. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for his right
wrist problems since March 1998. After
securing any necessary release, the RO
should obtain these records.
2. After obtaining any additional
medical records to the extent possible,
the RO should schedule the veteran for
orthopedic and neurologic examinations to
determine the current nature and severity
of the veteran's residuals of a right
wrist fracture, including all orthopedic
and neurologic impairment. The claims
folder should be made available to the
examiners for review before the
examinations. The neurologic examiner
should state which nerve has been damaged
as a result of the right wrist fracture
and summarize all significant positive
findings, particularly those relating to
limitation of function.
3. Thereafter, the RO should review the
claims file to ensure that all of the
foregoing requested development has been
completed. In particular, the RO should
review the examination reports to ensure
that they are responsive to and in
complete compliance with the directives
of this remand and if not, the RO should
implement corrective procedures. See
Stegall v. West, 11 Vet. App. 268 (1998).
4. After completing any additional
development deemed necessary, the RO
should readjudicate the issue on appeal
in light of any additional evidence added
to the record.
If the benefit requested on appeal is not granted to the
veteran's satisfaction, the veteran and his representative
should be furnished a Supplemental Statement of the Case and
an opportunity to respond. The case should then be returned
to the Board for further appellate consideration, if in
order. By this remand, the Board intimates no opinion as to
any final outcome warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Gary L. Gick
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).